Longrider

One of my colleagues drew my attention to this case today:

The geotechnical firm which employed a man killed when taking soil samples from a building site last year has become the first to be charged under corporate manslaughter laws.

Cotswold Geotechnical Holdings is accused of gross negligence which led to the death of a 27-year-old junior geologist in September.

I’ll be watching this one with interest. Not least because it is likely to set a precedent and, because this new law; Corporate Manslaughter (2007) Act; worries me.

It worries me because it has been brought about by the failure of earlier prosecutions. These failed because it was difficult if not impossible to identify a link between the root cause of the incident and high level executives. A high profile example being the prosecutions of Railtrack executives in the wake of the Hatfield crash. These prosecutions failed rightly in my opinion.

I understand completely the desire of groups such as the Paddington survivors to see justice done and those responsible held to account – I want nothing less myself. However, those responsible are not always obvious and, indeed, sometimes there is no one individual who may be responsible. Railtrack for example suffered a fractured management system following privatisation. Indeed, at one point, the executive lost management control of the zones to the point where they appeared to be independent fiefdoms. Even within those, the executive director could not realistically manage those individuals under his or her jurisdiction. Unless the director is to be breathing down everyone’s neck, there has to be some delegation and therefore, trust. It may not always be apparent that that trust has broken down until too late. I have witnessed such breakdowns where everything appeared dandy on the surface, but once scratched, the ghastly messy truth lay exposed for all to see. In that case, we picked it up early enough to prevent anything going horribly wrong.

Going back to Hatfield for a moment, the people who made the decision on the ground were not direct employees of Railtrack. Now, it is right and proper that the organisation be held to account for its failure to manage its contractors, but for individuals to be held to account for a decision made that they did not reasonably foresee is unethical. Hatfield, if you like, is an example of unexpected consequences. If you want to blame someone, blame those who set up a contract that financially penalised the maintainer for adhering to the requirements of the Rule Book, thereby encouraging bad decision making. The Railtrack management had every reasonable expectation that the rules would be followed irrespective of financial penalties – i.e. that the patrolman’s recommendation for a speed restriction be imposed be followed, because that is what the rules say should happen. Or, if you really want the person to blame, blame the politician(s) who created the whole sorry mess in the first place; but not an individual who, with the best will in the world could not take the necessary responsibility because they had no direct management control, such was a nature of the organisation at the time. Whether that has improved under Network Rail, I cannot say, although I hear murmurings that suggest things aren’t that different today.

Let’s assume for the moment that a company has in place all the relevant polices and control measures to manage its affairs safely. Yet, despite all this, there is a failing. It could be something unforeseen. It could be someone rushing to get a job done. It could be someone deciding to cut corners. Whatever it is, it is unlikely that a high level executive will have any knowledge or, for that matter, control over activities that may be occurring when he is in bed asleep. Unless there is clear evidence that such things were done with the knowledge and consent of the executive, to prosecute an individual is grossly unfair and morally wrong. A conviction, more so. The previous protection against wrongful conviction – a requirement for that evidence to be demonstrated is removed in this legislation. The government in appeasing the desire for someone to take the blame has removed that protection and thereby weakened the law. Merely being a director is enough to bring a prosecution for corporate manslaughter. We will see how that sits with a jury. And, of course, it may be that this individual is guilty as charged. Again, we will see.

Now, everyone going to work should reasonably expect to come home at the end of their shift in as good a shape as they set out. And the rail industry is killing too many of its own these days. And, let me be clear, if executives are actively encouraging unsafe practices just to get the job done, they deserve all they get – but that should be on the basis of robust evidence of gross negligence or wrongdoing, not just because the law has been weakened to allow the HSE to make a name for themselves and satisfy the tabloid press’ desire to string someone up. Another reasonable expectation of going to work is that you do not go to gaol just for doing your job.

If executives are prosecuted despite taking all reasonable steps to make sure that the people under their jurisdiction remain safe and healthy at work, how long before the talented and capable decide that they might just want something with less risk of going to gaol? The follow-on from that is that the talent pool shrinks, less capable and possibly less conscientious people will fill the gaps. So the workforce find themselves being pressurised to work unsafely because if they don’t there is always another gang that will take their place – and, yes, it does go on. And, if you are going to be prosecuted anyway, you might just as well be guilty as innocent.

That’s the problem with appeasing the mob, with making sure that someone – anyone – carries the can for tragedies even if there is no one person responsible; unexpected consequences. I work in a safety critical industry and have done so for nearly two decades and that responsibility has lurked over my shoulder for all of that time. I accept it as part of the territory. If I get it wrong, there is a heavy price to pay. But would I want to take on a job whereby if someone else, someone that I might not even know, on the other side of the country even, gets it wrong and I go to gaol? No, I would not.

So, I’ll be watching this one. It worries me. It worries me because it has all the hallmarks of bad law.

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Update: See John B’s comment on this thread. I may have misinterpreted the way this law works in practice as a consequence of the manner in which this case was reported. Mea Culpa.